consent of his sister, if it belonged to his sister; so that it results the government is entitled to the remedy sought, and an order as to this case will be accordingly entered.

In case No. 2572 it is agreed that on November 22, 1922, the narcotic officers of the United States, together with certain police officers of the city of Memphis, by reason of information relative to George Dunwood that he was unlawfully engaged in handling and selling narcotics, went to his home; that while secreted near thereto they saw an addict coming from the home or near the home of Dunwood; that when this addict was apprehended he was found to be in possession of a quantity of unstamped morphine, which he informed the officers he had obtained from Dunwood; that the officers then started to the home of Dunwood, but before reaching the house saw him leaving in the Ford automobile in question in this case. He was pursued, overtaken, arrested, and searched, and upon search being made in his inside pocket there was found about 30 grains of unstamped morphine. The of ficers had a search warrant for the home of Dunwood, but not for him or his car. They found in his home about nine ounces of unstamped narcotics.

The Remedial Loan Society has filed its petition in this case, setting up ownership to the car in question, and raising the same questions raised in the preceding case, and the further question that section 3450 (Comp. St. § 6352) does not apply to automobiles, because at the time it was enacted they were not in the contemplation of the act.

[3] Under the circumstances, the same rule would apply as to the right of the officers to make the arrest as in the Bellomini Case, and it would seem that they were justifiable in arresting the defendant and searching his person. The contention made that the section would not apply to automobiles is not sound. The wording of the act is broad enough to cover any character of vehicle which might be used for the unlawful purposes mentioned in the act, and the mere fact that automobiles were not then in use would not limit the act to only such vehicles as were in existence at that time. If this construction could be placed upon the act, it would necessitate the passage of

a new measure every time a material change might be made in any kind of carriage or vessel.

[4] The more serious question in this case is whether or not the automobile was being used for the removal or concealment of narcotics. It appears Dunwood was an addict; that, at the time he was arrested with the 30 grains of morphine in his pocket, he was also found in possession of a needle for use in administering it. It can hardly be said that the automobile was being used for the purpose of removing or concealing the narcotics. The mere fact that he was traveling in the automobile would not, within itself, be sufficient evidence of the unlawful use of the vehicle. As a matter of course, the narcotics were being removed by means of the automobile, because Dunwood, with the narcotics on his person, was in the automobile; but this does not necessarily imply that, within the meaning of the law, the automobile was being illegally used. More is necessary in order to work a forfeiture of a vehicle than to merely show a state of facts such as is presented by this There must be evidence showing that the vehicle was being used for the purpose of either storing or removing the untax-paid commodity. One with untax-paid commodities on his person might desire to go from one particular point to another particular point, and in so doing make use of an automobile; but if his object was simply removing himself from one place to another, and the vehicle was used as a mere convenience so to do, with no intention on his part of removing or concealing therein the untax-paid commodities, but that they were simply carried by reason of the fact that they chanced to be at that time on his person, such acts would not warrant a forfeiture of the vehicle. The law contemplates the use of the vehicle as a means or medium of concealing or removing the prohibited article, and not a mere chance use thereof.

case.

In other words, in this case the person and not the vehicle was the offender. Especially is this view strengthened by the fact appearing that Dunwood was engaged in the grocery business, and there is nothing in the record to negative the idea that he may have been merely on his way from his home to his grocery. It results that in this case the proceedings will be dismissed.

In re WHITLEY.

(District Court, W. D. Tennessee, E. D. November 15, 1924.)

No. 1280.

1. Bankruptcy 347-Sheriff levying on property of bankrupt, but not making sale before institution of bankruptcy, not entitled to claim commissions on sales.

Under Bankruptcy Act, § 67f (Comp. St. § 9651), and under Shan. Code Tenn. §§ 6352, 6356, 6402, subsecs. 18, 19, 21, a sheriff cannot claim commissions under executions levied

on real estate of voluntary bankrupt within four months prior to bankruptcy, where no sale was had, though sale was pending, at institution of bankruptcy proceedings.

2. Bankruptcy 347-Sheriff's fees for levying execution not entitled to priority.

Under Bankruptcy Act, § 67f (Comp. St. §

9651), and Tennessee statutes, a sheriff is not entitled to priority for fees for levying executions on real estate of voluntary bankrupt within four months prior to institution of bankruptcy proceedings.

In Bankruptcy. In the matter of J. B. Whitley, bankrupt. Claim by the sheriff of Hardeman county, Tenn., for fees and commissions, was disallowed in part, and priority denied, by the referee, and claimant petitions to review. Referee's report confirmed.

which the executions were based were rendered January 19, 1923. At the time of the rendition of the judgments and the levy of executions Whitley was insolvent.

The referee disallowed outright the claim as to commissions, allowed the claim for $2 for the levy of the executions, but denied the sheriff priority for this amount. Petition for review was filed, and the record was duly certified.

This has been a much-mooted question, and it may be said that the authorities are not satisfactorily clear, so that it may be definitely stated' what the weight of authority is.

Section 67f of the Bankruptcy Act of 1898, the same being chapter 541 of the Acts of 1898, passed July 1st (30 Stat. 544, at page 565, 9 U. S. Comp. Stat. § 9651, p. 11007, at page 11638), provides: "That all levies, judgments, attachments, or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other liens shall be deemed wholly discharg

tee.

ROSS, District Judge. The sole question presented for determination in this matter is whether or not a sheriff in Tennessee is entitled to priority for fees and commissions claimed by reason of executions levied on real estate of a voluntary bankrupt within four months prior to the date of the filing of the petition in bankruptcy, where the property levied on had not been sold, but sale thereof was pending at the time of the institution of the bankruptcy proceedings.

On the 11th day of April, 1923, the sheriff of Hardeman county, Tenn., levied two executions, issued out of the chancery court of Hardeman county, upon lands of J. B. Whitley, to satisfy judgments in said court. The lands were duly advertised for sale, but prior to the date of sale, and on the 10th day of May, 1923, Whitley filed his voluntary petition, and was duly adjudicated a bankrupt. Thereupon the sheriff filed his claim for the sum of $150.78, claimed as fees and commissions due him out of the estate, as a priority, by reason of the levy of the executions in his hands and the proceedings thereunder. The judgments upon

pass to the trustee as a part of the estate of

Under the Bankruptcy Act of 1867 (14) Stat. 517), such judgments, although followed by execution and levy, were not affected by bankruptcy. In re Gold Mountain Min. Co., Fed. Cas. No. 5,515; In re Winn, Fed. Cas. No. 17,876. However, under the act of 1867 it appears that rights such as the one here claimed were, as stated by Collier on Bankruptcy (13th Ed.) vol. 2, p. 1482, § 6, "quite uniformly" determined against such claims. In re Davis, Fed. Cas. No. 3,616; Zeiber v. Hill, Fed. Cas. No. 18,206; In re Fortune, Fed. Cas. No. 4,955; In re Preston, Fed. Cas. No. 11,394; In re Jenks, Fed. Cas. No. 7,276; In re Ward, Fed. Cas. No. 17,145; In re Hatje, Fed. Cas. No. 6,215. While under the present law the decisions as to similar questions "quite evenly balance." In re Lewis (D. C. Mass.) 4 Am. Bankr. Rep. 51, 99 F. 935; In re Beaver Coal Co. (C. C. A. 9th Cir.) 7 Am. Bankr. Rep. 542, 113 F. 889, 51 C. C. A. 519, affirming (D. C.) 6 Am. Bankr.

Rep. 404, 107 F. 98; In re Young (D. C. N. Y.) 2 Am. Bankr. Rep. 673, 96 F. 606; In re Allen (D. C. Cal.) 3 Am. Bankr. Rep. 38, 96 F. 512; Matter of Moncrief Mfg. Co. (Ref. R. I.) 31 Am. Bankr. Rep. 674; Matter of Hessler Foundry & Mfg. Co. (D. C. N. Y.) 43 Am. Bankr. Rep. 246. For a review of the cases, see In re Jennings (Ref. N. Y.) 8 Am. Bankr. Rep. 358. The same authority states that, in determining the rights of a sheriff under a question such as that now being presented, the first matter for consideration is as to whether the sheriff has a lien for his fees at the time the petition is filed. (2) "If so, is it a lien that survives the bankruptcy? In either event, the property comes to the trustee charged with such lien, and the sheriff's fees must be paid; or, if the sheriff has no lien or it is avoided by the bankruptcy, (3) is there any state statute that gives the sheriff a priority? If not, his claim to priority for his fees will be disallowed.

Under the laws of Tennessee (Shannon's Code, § 6352) "no officer is allowed to demand or receive fees or other compensation for any service further than is expressly provided by law." And under section 6356 of the same the statute provides: "No officer is entitled to demand or receive fees allowed by law until the duty or service for which they are granted is performed, unless otherwise expressly provided by law." Construing this statute, it was held by the Supreme Court of Tennessee in Maynard v. State, 9 Baxt. (68 Tenn.) 225, that in all cases where the Legislature had made the performance of any duty pertaining to an office a condition upon which fees are to be paid an officer was not entitled to demand his fees until such duties were performed. By section 6402 of Shannon's Code, subsec. 18, a sheriff is allowed for levying an execution on property, $1 for each execution so levied. By subsection 19 he is allowed "for collecting money on execution," on the first $100, $4; by subsection 20, for every $100 over $100 and not exceeding $300, $3; by subsection 21, for every $100 over $300, $2. There is no statute in Tennessee giving a sheriff in a case like this any special lien for his fees. Nor is he entitled to commissions for levying an execution, unless the money is collected by him or paid to another by virtue of such levy. It will be noted that the commissions provided by the statute are for "collecting" money, and not for merely levying an execution.

It was held in Harris v. Petigrew, 5 Lea

(73 Tenn.) 596, in a case where a bill had been filed to enforce a vendor's lien, and an attachment had been issued and levied on the land by the sheriff, which land was afterwards sold by the clerk and master under a decree of the court, that the sheriff was not entitled to commissions on the amount of the sale, but only entitled to his fee for levying the attachment. In Shau v. Armstrong, 2 Heisk. (49 Tenn.) 420, in a case where, after levy by the sheriff, who was plaintiff in the case, the defendant became bankrupt, and the sheriff agreed to take $500, release the attachment, and prove his debt in bankruptcy, he was allowed commissions on the $500, but refused commissions on what might be subsequently realized in bankruptcy.

A very interesting, instructive, and wellconsidered case on this question is that of Matter of Edward H. Jennings, 8 Am. Bankr. R. 358, decided by Mr. Hotchkiss, referee for the Western district of New York, August 19, 1902. In this case the referee cites practically all the cases decided up to that time, so far as investigation has revealed, bearing upon this question. Many of the cases are reviewed, and in the case it was held that under the laws of New York a sheriff's lien is incident to an attachment or execution creditor's lien, and falls with it, and that under the New York statutes such officer was not entitled to payment out of the bankrupt's assets for fees on an execution levied within four months of the bankruptcy.

[1] What is said in this case relative to the New York statutes applies with equal force to the Tennessee statutes. Under section 67f of the Bankruptcy Act of 1898, the judgments, as well as the executions based thereon and the levies under the executions, in the instant case, were nullified by the bankruptcy proceedings, as there was no order of the court, within the proviso of this section, which would have saved any lien existing by virtue of the levy of such execution. In re Richards (D. C. Wis.) 2 Am. Bankr. Rep. 516, 95 F. 258; In re Storm (D. C. N. Y.) 4 Am. Bankr. Rep. 601, 103 F. 618; In re Stout (D. C. Mo.) 6 Am. Bankr. Rep. 505, 109 F. 794; In re Benediet, 8 Am. Bankr. Rep. 463, 37 Misc. Rep. 230, 75 N. Y. S. 165; Ricks v. Smith, 40 Am. Bankr. Rep. 25, 20 Ga. App. 491, 93 S. E. 116; Matter of Community Stores of Iowa, Inc. (D. C. Iowa) 49 Am. Bankr. Rep. 110, 282 F. 328; Ades v. Caplin, 41 Am. Bankr. Rep. 391, 132 Md. 66, 103 A.

Co., 37 Am. Bankr. Rep. 437, 145 Ga. 400, 89 S. E. 413. Consequently, as no money came into the hands of the sheriff by reason of such levies, under the statutes of Tennessee as construed by the Supreme Court of the state, the sheriff was not entitled to commissions for levying the executions, unless he had collected moneys thereunder, or the same had been paid as a result of such levies. He is therefore not entitled to recover any amount either as a prior claim or as a general creditor by reason of the claim for commissions.

[2] Under the Tennessee statutes above cited the sheriff was entitled to $1 each for levying the two executions. As against those entitled to any funds in the case wherein the executions were levied, the sheriff would have been entitled to have his costs thus earned paid before any distribution could have been made of such funds. But, under the authority of the Jennings Case, with which reasoning I fully agree, when the bankruptcy proceedings were instituted, the sheriff stood in the same plight as any other creditor whose claims were not declared entitled to priority by virtue of the provisions of the Bankruptcy Act. There is. nothing under the law that would entitle him to stand on any higher ground than any ordinary creditor of the bankrupt.

It is insisted on behalf of the sheriff that when the executions were levied the sheriff became the party responsible for the property levied on, and that in law the title to the property was for the time being vested in the sheriff. If the contention of the sheriff be granted, nevertheless his possession and right to the property, as well as all steps taken pursuant to the levy of the executions, were interrupted by the bankruptcy proceeding, and under the law the trustee became entitled to the property pending the determination of the questions in the bankruptcy court. By operation of law the sheriff in the first instance was put in possession temporarily of the property in question. By operation of law he was deprived of this possession upon the filing of the petition in bankruptcy and the adjudication thereunder. The sheriff is thus protected. In any event it would be difficult to see how this could be considered on the question of his right to commissions under the statutes of Tennessee.

The opinion of the referee is in all things confirmed, and an order will be accordingly prepared.

Atty. Gen., et al.

(District Court, N. D. Georgia, N. D. December 20, 1924.)

1. Commerce

No. 311.

8(4)—Georgia statute requir ing automatic locomotive fire box doors invalid as to locomotives in interstate commerce.

Laws Ga. 1924, p. 173, requiring railroad steam locomotives to be equipped with automatic fire box doors, held invalid as to locomotives engaged in interstate commerce; Act March 4, 1915 (Comp. St. § 8604a) and Act of June 7, 1924, amending Act Feb. 17, 1911, § 2 (Comp. St. § 8631), and rules of Interstate Commerce Commission, having exclusively occupied the field as to safety appliances on locomotives engaged in interstate commerce. 2. Commerce 8(4)-Interstate commerce safety rules exclusive rules of law.

Rules and regulations authorized by the Interstate Commerce Commission to fix the standard of safety appliances, when approved and filed, are the exclusive law of transportation to which they apply.

In Equity. Suit by the Atlantic Coast Line Railroad Company against George M. Napier, Attorney General, and others. Decree for complainant.

Alston, Alston, Foster & Moise, of Atlanta, Ga., for complainant.

Geo. M. Napier, Atty. Gen., for defendant.

Branch & Howard, of Atlanta, Ga., and Thomas Stevenson, of Cleveland, Ohio, for the Brotherhoods.

SIBLEY, District Judge. The Georgia statute of August 5, 1924 (Laws Ga. 1924, P. 173), whose execution is sought to be enjoined, requires, under daily penalty, that all steam locomotives of specified types, operating in or through the state after January 1, 1925, be equipped with an automatic in described. There appears no such cost door to the fire box of a construction thereof installation or insufficiency of time betive date, or want of adaptation of means tween the passing of the law and its operaclassification as to make the statute a taking to a proper legislative end or arbitrary of property without due process of law, or a denial of equal protection of the law. The real question is whether, in view of the congressional legislation on the subject, its provisions can be applied to carriers and locomotives engaged in interstate commerce, as the complainant and its locomotives are admitted to be. By the Act of Congress of March 2, 1893 (Comp. St. §§ 8605-8612), carriers by railroad, in interstate commerce, were required to equip locomotives with power brakes; by the Act of May 30, 1908

4.907

(sections 8624-8629), safety ash pans were required; the Act of May 27, 1908 (section 8616), required the Interstate Commerce Commission to investigate, test, and report on safety appliances of all kinds; the Act of February 17, 1911 (sections 8630-8639), dealt with the safety of boilers and their appurtenances, providing for inspections and the establishment of rules touching the same under the direction of the Commission. At this stage of the legislation it was held that Congress had neither directly nor through the Commission covered the matter of headlights for locomotives, and that the states were still free to legislate touching them. Atlantic Coast Line v. Georgia, 234 U. S. 280, 34 S. Ct. 829, 58 L. Ed. 1312. Thereafter the act touching inspection of boilers was, on March 4, 1915, made "to apply to and include the entire locomotive and tender and all parts and appurtenances thereof." It was intimated in Vandalia Railroad v. Indians, 242 U. S. 255, 37 S. Ct. 93, 61 L. Ed. 276, that a different ruling from that made in the Georgia case would be proper thenceforth.

In line with the legislation last named, by the Act of June 7, 1924 (43 St. 659), section 2 of the original act of February 17, 1911, was amended to read thus: "Sec. 2. That it shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb, and unless said locomotive, its boiler, tender, and all parts and appurtenances thereof have been inspected from time to time in accordance with the provisions of this act and are able to withstand such test or tests as may be prescribed in the rules and regulations hereinafter provided for."

The Interstate Commerce Commission, since the amendment of 1915 (Comp. St. § 8604a), has promulgated rules of inspection regarding many appliances, looking to safety on locomotives, including headlights of a stated capacity, cab windows of specified arrangement, and having protection from obscuration by snow, whistles, sanding apparatus, and the like. The chief inspector has several times reported the desirability of automatic fire doors such as are required by the Georgia statute, but the carriers have not proposed nor the Commission required a rule of inspection providing for these.

[1] The defendants contend that Congress has not, by its legislation, dealt with fire doors; that the function of the Commission is but to approve the kind of locomotives and appurtenances that the carriers have put in use and to see that they, such as they are, are kept in proper and safe condition, and that it has no authority to require other and different types of locomotive or other or different equipment; and, if the Commission has the power to require fire doors, it has not exercised it, and that the field of legislation thus left open may be occupied by the states; and that, especially in the exercise of its police power the state, for the safety and health of its citizens, may make requirements which are not repugnant to any constitutional act of Congress. These contentions cannot prevail here. It is settled that legislation for the safe equipment of railroad engines and cars used by interstate carriers is within the congressional

merce.

power to regulate interstate com

The same matter may also be within the reserved police power of the states. But the state statute here in question, concerning itself solely with the locomotives of railroad companies, seems more clearly a regulation of commerce than a police regulation for the good of the general public. The case to that extent differs from that of Atlantic Coast Line v. Bahnsen (D. C.) 300 F. 233. But, whether it be an effort to regulate commerce by acting on its instrumentalities or an exercise of police power, the state statute as applied to the locomotives of carriers engaged in interstate commerce finds the field fully occupied by paramount federal legislation. By the enactments of 1915 and 1924 above referred to Congress has required of such carriers the use of locomotives in proper condition and safe to operate in all their parts and appurtenances, and authorized the Commission, by rules and regulations, to fix the standard of safety and propriety.

[2] Though the act contemplates liberty in the carrier to initiate these rules and regulations for the Commission's approval, the Commission may disapprove what is offered, and promulgate its own tests of fitness. This resembles the process of rate making, and, just as the rates when approved and filed are the exclusive law of transportation to which they apply, so these rules when approved are the law of locomotive equipment. The Commission has in fact already required such appurtenances as headlights, cab windows, whistles, and sanding apparatus, which is a practical construction by it